Sunday, May 6, 2018

We Need a National Injunction-Review Law

Abuse of nationwide injunctions by #Resistance judges upends the separation of powers

The issuance by a federal district-court judge in the District of Columbia of an injunction against the Trump administration’s attempt to end the DACA program (for foreign nationals who entered the United States as minors) brings to at least 23 the number of nationwide injunctions issued against the administration. Historically, injunctions against federal-government defendants benefited only the immediate plaintiffs in the lawsuit. There were no nationwide injunctions in the nation’s first 175 years, and even after the first few, for several decades they were rare. However, federal district-court judges have already issued more against the Trump administration than they did during the entire eight-year Obama presidency. This increase is a significant new development in our political system. The power of the over 800 federal district-court judges to dictate national policy can and should be moderated by Congress before the judiciary makes a regular habit of usurping the functions of the executive branch.

Critics such as Attorney General Jeff Sessions point out that this new flood of nationwide injunctions encourages forum shopping, cuts off deliberation on the issue in other courts, and short-circuits the protections of the class-certification process. Furthermore, where there are multiple injunctions against the same executive action, they can create administrative chaos. For example, the District of Columbia court ruling is more far-reaching than the previous pro-DACA injunctions issued by courts in San Francisco and Brooklyn, and they all directly contradict another district court’s ruling that the DACA termination is valid.

Beyond the disruptions caused by local courts’ injunctions claiming national effect lies a constitutional issue. Laws are supposed to be made and carried out by the legislative and executive branches, which are democratically accountable. When unelected, life-tenured federal judges actively interfere with those functions, often with flimsy legal reasoning powered by overheated partisan language, the balance of power between the democratic branches (the legislative and the executive) and the autocratic branch (the judiciary) risks being thrown dangerously out of balance. While we have accepted that the Supreme Court can review the constitutionality of legislative and executive actions, the recent increase in nationwide injunctions has expanded this principle to substitute the judiciary for the executive in carrying out routine government functions.